Congress and the Small Business Administration

On April 24, 2020, the Paycheck Protection Program and Health Care Enhancement Act, phase four of the Congressional response to COVID-19, was signed into law to enhance funding for small business loans, health-care providers, and COVID-19 testing. Specifically, the Act’s Division A provides additional lending authority for certain Small Business Administration (SBA) programs, and its Division B provides supplemental appropriations for the Department of Health and Human Services (HHS) and the SBA that is designated as emergency spending—exempt from discretionary spending limits.

Congress has begun alluding to phase 5 legislation, but no draft bill has been introduced in the House or Senate—stay tuned!

Federal Railroad Administration

On April 21, 2020, the FRA issued its Response to Comments in FRA-2020-0002 from Labor Organizations. In responding to a letter from twelve unions and their comments on waiver petitions submitted to the emergency relief docket (ERD), the FRA concluded that no change to the regulatory relief granted in response to the waiver petitions is yet required.

Specifically, the FRA denied the Labor Organizations’ requests that “FRA make clear that a railroad cannot conclude that it has a workforce shortage and utilize the waiver relief unless it has offered furloughed employees the opportunity to fill any shortfalls and that it consider this requirement to be an amendment to all waivers granted contingent on workforce shortages.” While recognizing the Labor Organizations’ concerns, the FRA asserted that it “has no legal authority to require railroads to recall personnel from furlough to fill workforce shortages caused by COVID-19.”

On April 23, 2020, the EEOC updated its technical assistance questions and answers: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to provide additional guidance on disability-related inquiries and medical exams. Specifically, at A.6, the EEOC makes clear an employer’s ability to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Employer-administered COVID-19 testing is subject to ADA standards that any mandatory medical test of employee be job-related and consistent with business necessity. The EEOC reminded employers of ensuring accurate and reliable tests and urged the continuance of employee observation of infection control practices, such as social distancing, regular handwashing, and other measures.